Leon v. State

• Citation: 189 P. 433,21 Ariz. 418
• Decision Date: 28 April 1920
• Docket Number: Criminal 485
• Parties: ESPERANZA LEON, Appellant, v. STATE, Respondent
• Court: Supreme Court of Arizona

189 P. 433

21 Ariz. 418

ESPERANZA LEON, Appellant, v. STATE, Respondent

Criminal No. 485

Supreme Court of Arizona

April 28, 1920

APPEAL from a judgment of the Superior Court of the County of Santa Cruz. W. A. O'Connor, Judge. Affirmed.

Mr Frank J. Barry, Mr. S. F. Noon and Mr. Warren Lee Kinder, for Appellant.

Mr Wiley E. Jones, Attorney General, Mr. Louis B. Whitney and Mr. F. J. K. McBride, Assistant Attorneys General, and Mr Leslie C. Hardy, County Attorney, for the State.

OPINION

BAKER, J.

The defendant was convicted of the crime of receiving stolen goods, knowing them to have been stolen. Penal Code, par 493. The specific charge in the information was the felonious receiving of $3,200, the same being the property of one Dolores De Valenzuela.

It appears, from the evidence adduced at the trial on the part of the prosecution, that on or about March 17, 1919, the defendant moved into a house belonging to the said Dolores De Valenzuela, and that the latter lived in an adjoining house in the same yard, together with her granddaughter, Rosa Rabago. The granddaughter was the sole witness testifying to the commission of the alleged crime, and she testifies that the defendant, soon after moving into the adjoining house, told her to look for money in her grandmother's house, and not to quit looking for it, and, if she found any, to bring it to her (the defendant), so that she could keep it at her house, in case the granddaughter was run out of her grandmother's house. The granddaughter further testified that the matter of searching for the money was talked over on numerous occasions by her and the defendant, and that, acting on the advice and suggestion of the defendant, she looked for the money on different occasions and in various places, and finally, on June 24, 1919, she found the money in two wallets in a bed in her grandmother's house, and that she immediately took the money and carried it to the defendant to keep for her. The grandmother, the owner of the money, testified that she had $3,200 in paper money in two wallets in a pillow on her bed; that she last saw the money in the latter part of June, 1919, and that when she looked in the pillow in the month of August, 1919, she found the money was gone; and that she asked her granddaughter about the matter, and the latter confessed at once that she had taken the money and had given it to the defendant. No evidence was introduced on the part of the defendant. She did not take the stand in her own behalf.

Counsel for the defendant insist that there was a variance between the allegations in the information and the proof. The argument is made that, admitting the testimony of the girl, Rosa Rabago, to be true, it shows that the defendant was guilty of larceny, and not of receiving stolen property; that larceny and receiving stolen goods, knowing the same to have been stolen, are two separate and distinct offenses; and that the defendant could not be charged with one offense, and convicted upon evidence establishing another. The rule seems to be well settled that, where a larceny has been committed, the principal thief -- that is, the one who is guilty of the actual caption and asportation of the property -- cannot be adjudged guilty of criminally receiving the thing stolen, for the reason that he cannot receive from himself. 2 Bishop on New Criminal Law, par. 1140; People v. Brien, 53 Hun, 496, 635, 6 N.Y.S. 198; Territory v. Graves, 17 N.M. 241, 125 P. 604. But the reason for the rule disappears where the receiving of the stolen property is not embraced in the caption and asportation.

This distinction is illustrated in People v. Rivello, 39 A.D. 454, 57 N.Y.S. 420, a case arising under a statute similar to ours, making accessories before the fact principals in the crime. The New York Penal Code provides as follows:

"A person concerned in the commission of a crime, whether he directly commits the act constituting the offense, or aids and abets in its commission, and whether present or absent, and a person who directly or indirectly counsels, commands, induces or procures another to commit a crime, is a principal." Section 29.

In the case above cited it appeared, on the trial of the defendant for receiving stolen goods, that one L., who had been in the employ of one P., a cap manufacturer, testified that it had been arranged between him and the defendant, who had the privilege of removing the waste paper and rags from P.'s place of business, that he (L.) was to take P.'s goods, consisting of silks and satins, from the office floor, where they were kept, and put them in a box on the next floor, wherefrom the defendant took the rubbish, and that defendant in this way had received divers pieces of goods, and L. had received money from the defendant on account thereof. It was held that while, under the provisions of the Code above quoted, the defendant could be convicted of larceny, yet this did not bar a prosecution for receiving stolen goods, for the reason that the moment L. took the goods of P. for the purpose of transportation to the place of concealment the larceny was complete, and therefore a person receiving the goods, knowing they had been taken with felonious intent, would be guilty of receiving stolen goods.

The California Penal Code provides as follows:

"All persons concerned in the commission of a crime, whether it be a felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, . . . are principals in any crime so committed." Section 31.

In People v. Day, 30 Cal.App. 762, 159 P. 457, the Supreme Court said:

"Even if the evidence warranted and would have supported a charge of burglary upon the theory that the defendant was an accessory thereto, nevertheless it . . . shows that the defendant subsequently received the fruits of the burglary from the actual perpetrator thereof, knowing them to be stolen; that as a...